Nullification and Interposition – Part 2

Nullification and Interposition – Part 2

Thomas Allen

The federal government is obliged to cease enforcing a nullified act in a State that has nullified it. If the federal government attempts to enforce a nullified law, such action would be like humans trying to oust their Creator, God — the created agent trying to overthrow the creator sovereign “we the people” of the nullifying State. Although the former is impossible, Lincoln accomplished the latter.

There are only three constitutional ways to overturn the nullification of a federal act. One way is to persuade the nullifying States that it is wrong, which results in the State rescinding its nullification. Second, the federal government repeals or rescinds the nullified act. The third is that the Constitution is amended to clarify that the federal government has the power that has been nullified or that the nullified power is a reserved power that the federal government should exercise.

Although Congress can call forth the militia “to execute the laws and suppress insurrection,” this power does not apply to nullification because the law does not exist in the nullifying State. Since the act of nullification has declared the law null and void, it does not exist in the nullifying State.

One argument against nullification is that the Supreme Court is the final arbitrator of the constitutionality of all federal and State acts. If the US Supreme Court is the final arbitrator, it means two things. First, the creature (the federal government) is superior to the creator (the States). Such usurpation is like man (the creature) usurping the power and authority of the creator (God). Misery and despotism are the results. Second, of the three branches of government, the Supreme Court is the superior branch. However, the Constitution makes Congress the superior branch and the federal courts the weakest. Before it emasculated itself, Congress could restrict the Supreme Court’s jurisdiction to the few items named in Article III and could deny it jurisdiction over most acts of the States. Further, Congress can strip the Supreme Court of its appellate authority. Moreover, since Congress created all inferior courts, it can abolish them. Also, Congress can and has restricted the jurisdiction of inferior courts, which includes the authority to decide the constitutionality of federal and State acts. Further, the President can follow Lincoln’s precedent and ignore the rulings of any federal court, including the Supreme Court.

Another argument that opponents of nullification use is the Supremacy Clause of the US Constitution, Article VI, Clause 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Thus, they assert that all federal laws are the supreme law and prevail over the States, and a State cannot judge the constitutionality of a federal law. Deciding the constitutionality of a federal law is the job of federal courts.

Conversely, most founding fathers who were involved with the development and ratification of the Constitution of 1787 (most notably, Madison and Jefferson) assert that only federal laws made pursuant to the Constitution are supreme. That is, only those federal laws necessary to execute specifically delegated powers are constitutional. Any federal law that goes beyond the specifically delegated power is unconstitutional; it is not a law and, therefore, is void and of no force or effect. A State’s nullification makes a finding that a particular federal law is not made pursuant to the Constitution and is, therefore, not a law.

Who ultimately decides if a federal law is constitutional? It cannot be the Supreme Court because that would make the federal government, the creature or agent, the judge of its limits. The only logical arbitrator of the constitutionality of a federal law is “we the people,” that is, “we the people” of each State acting independently either through their legislature or a special convention. Since “we the people” of each State independently ratified the Constitution of 1787 and, consequently, formed the union created under that Constitution and its government, they should be the ultimate and final judge of the constitutionality of all federal acts.

Therefore, federal laws are supreme only if they are constitutional. An unconstitutional federal law or other federal act is null and void. Being the principals of the contract, the US Constitution, that created the federal government and delegated to it certain powers, each State, acting individually, is the final judge about whether a federal action is constitutional.

Another major argument against nullification is that the majority has the right to govern, i.e., the will of the majority must prevail — the majority of the whole or an absolute majority. As a practical matter, the will of the whole community is the will of the stronger interest. (Most people who hold this view demur when the majority turns against their favorite project.) 

There are two ways to estimate the majority. The first is a majority of the whole community in the aggregate. The second is a majority of political interests (different classes, communities, etc.) formed into one general confederated community. In the second case, the majority is a majority of the various classes or communities, with the assent of each taken separately. The concurrence of all constitutes the majority — concurrent majority. People who object to nullification because it thwarts the majority are referring to the first type of majority.

Since the Constitution came into being through a concurrent majority, an absolute majority conflicts with the Constitution. (The concurring accent of all the States formed and ratified the Constitution and not a majority of the whole in the aggregate.)

People who object to nullification assert, in effect, that the federal government has the sole right to decide the extent of its own powers and, by that, place the reserved powers of the States at its whim and mercy — thus, destroying the equilibrium of the system.

Nullification is an important but rarely used means to keep the federal government within its constitutional bounds. Without nullification, the federal government, the agent of the States that created it, will assume powers never delegated to it and expand delegated powers beyond what was intended. History proves this point. Since nullification essentially died in 1865, the federal government has exploded far beyond its constitutional bounds, and the States have shrunk to near insignificance. 

Do the States have the right to interpose and nullify federal laws? Under the Constitution that the Founding Fathers gave to the union, the answer is “yes.” According to the Founding Fathers’ Constitution, the States are independent sovereign republics, i.e., independent sovereign nations. Just as nations that enter into a treaty or compact can each independently judge adherence to that treaty or compact, so can the States independently judge adherence to the Constitution. Moreover, the States not only have the right, but they also have the duty to decide independently if the Constitution (a treaty and compact between the States) is being violated.

Under the constitution that Lincoln gave to the union, the answer is “no.” According to Lincoln’s constitution, the States are merely administrative provinces. They can only do what the federal government allows them to do. The rights of the States are mere concessions that can be revoked any time. “Might makes right” is the underlying principle of the Lincoln constitution. (For the difference between the Constitutions of the Founding Fathers and Lincoln, see “What Is Your View of the US Constitution?” by Thomas Allen) 

Even under the Constitution of the Founding Fathers, the people who controlled the federal government avariciously lusted after power and, therefore, preferred “might” to “right” and objected to a State nullifying even the most unconstitutional acts of the federal government.

Ending grants to State and local governments would be one of the best things to occur in this country. It would give the States the courage to nullify unconstitutional federal acts and to interpose to prevent their enforcement. If the cowardly States cared about protecting themselves and their citizens, they would nullify thousands of federal acts.

Afterthought. A great irony of today is that the woke politicians and other wokesters supporting nullifying federal acts of deporting illegal aliens are using, most likely unknowingly, the political philosophies of Jefferson and Calhoun. What makes their support of nullification so ironic is that they have declared Jefferson and especially Calhoun persona non grata, who should be erased from history.

For more on nullification, see the following works of John C. Calhoun:

The Disquisition on Government,

Fort Hill Address,

Important Correspondence on the Subject of State Introposition [sic], Between His Excellency Gov. Hamilton and Hon. John C. Calhoun, and 

“Against the Force Bill”

Also, see these articles:

The Kentucky Resolves of 1798

The Kentucky Resolves of 1799

Virginia General Assembly Report of 1800

Also, see these articles by Thomas Allen:

 “Calhoun and Concurrent Majority,”

“States’ Rights,”

“States’ Right and Society,”

“Jefferson and States’ Rights,”

“Calhoun and States’ Rights,” and

“More Thoughts Related to the US Constitution.”

Copyright © 2025 by Thomas Coley Allen.

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Part 1.

Nullification and Interposition – Part 1

Nullification and Interposition – Part 1

Thomas Allen

When people oppose a federal act, most of them support the right of States to interpose and nullify that act. However, they oppose the right of States to interpose and nullify a federal act when they support that act.

Would the people who object to States interposing to thwart the federal government apprehending and deporting illegal aliens have also objected to States interposing to thwart the enforcement of fugitive slave laws? Most would probably support the States interposing and nullifying fugitive slave laws. Yet, the Constitution emphatically requires returning runaway slaves, but it does not expressly require or even authorize the federal government to deport illegal aliens. (See Article IV, Section 2, Clause 3 of the Constitution.) Nevertheless, one can argue that deporting illegal immigrants is enforcing the nationalization statutes — but that is for each State to decide for itself.

If they are consistent, people who object to a State interposing to prevent the federal government from enforcing immigration laws that a State finds unconstitutional should also object to a State interposing to prevent the federal government from enforcing gun laws that it finds unconstitutional. Conversely, people who support a State interposing to prevent the federal government from enforcing gun laws that the State finds unconstitutional should also support a State interposing to prevent the federal government from enforcing immigration laws that it finds unconstitutional.

  For example, if the federal government outlawed private ownership of so-called assault rifles, most ardent Second Amendment proponents would support States nullifying that law and oppose the federal government overriding the nullification. However, if a State outlawed private ownership of assault rifles, most of these same proponents would urge the federal government to veto such a State law. If the State nullified the federal government’s veto of the State law, these same proponents would urge the federal government to override that nullification. Thus, only a few people support nullification in principle. Most support nullification if it supports their position and oppose nullification if it opposes their position.

Now, let us look at some definitions. “State” can mean either the government of a State or “we the people” of that State, who created the government of that State and are a community distinct and independent of all other States. “We the People” are not all Americans collectively forming one great community. (See “Meaning of ‘We the People’”  by Thomas Allen.) Sovereign power resides in the people of each State (“we the people”) independent of the people of the other States (“we the people” of each of the other States).

Being sovereign, a State may take three actions against an unconstitutional act of the federal government: nullification, interposition, or veto. Nullification nullifies an unconstitutional act regarding the nullifying State. Interposition is a State shielding its citizens from the federal government. Veto is the arresting or inhibiting an unconstitutional act of the federal government within the bounds of the State.

Nullification is not secession. With nullification, only the nullified federal act is unenforceable; all other federal laws remain enforceable. Confining the agent, the federal government, within the limits of its delegated powers is the objective of nullification. With secession, no federal law remains enforceable in the seceding State because the State is no longer in the union, and, therefore, it is no longer under the jurisdiction of the federal government. It is a foreign nation. Withdrawing as a member of the union relieves the seceding State of the obligations of the association, the union; that is the objective of secession. A seceding State also loses the benefits of the union. Thus, secession returns the seceding State to the relationship that it had with the other States before it joined the union. While a nullifying State remains in the union, a seceding State removes itself from the union. Secession deals with the acts of States that make remaining in the union unbearable. Nullification deals with the acts of the federal government, which is an agent of the States. Whereas secession divides the union, nullification preserves it and the Constitution.

Before the adoption of the Constitution, no State nor all the States could exercise any power over a State without that State’s consent. They were independent nations.

In the Declaration of Independence, the colonies declared themselves to be free and independent States (nations) and not a free and independent State (nation). Furthermore, the Treaty of Paris of 1783, which formally ended the American Revolutionary War, recognized the colonies as 13 independent States (nations). Also, they proposed the Constitution as independent States and ratified it as independent States. The ratifying States bound themselves to the Constitution, but they did not bind any State that had not ratified it.

When a State ratified the Constitution, it bound only its citizens and no other people. Thus, the Founding Fathers’ Constitution formed a union of States and not a union of individuals.

Since the Constitution, which the sovereign States brought into being with ratification, created a general government (the US government, federal government, or general government) as their agent, the created agent has no right to impose its construction of the Constitution on the States or any one of them. Thus, the Constitution of 1787 formed a political community of sovereign States (nations) where each State may determine for its citizens the extent of powers delegated to the federal government and those reserved to the States.

Accordingly, the Constitution of 1789 was a contract between independent sovereign republics, which created an agent, the federal government, to carry out specific and limited activities. Then, Lincoln came along and essentially voided that contract and usurped all the sovereignty and powers of the States, the parties to the contract. (Now, the States have only those powers that the federal government condescends to grant them.)

The Constitutional Convention rejected giving the federal government the power to prevent a State from opposing and preventing (interposing and nullifying) the execution of acts of the federal government. Also, it rejected authorizing the federal government the power to compel a State (its government and “we the people” of that State) to obey federal acts. Furthermore, it rejected giving the Supreme Court jurisdiction over all controversies between the United States and an individual State. Moreover, it rejected giving Congress the power to void State laws that Congress believed interfered with the interests of the union. Thus, the Constitutional Convention endorsed nullification by forbidding the federal government from enforcing its law in a State once that State objected to that law. Nowhere does the Constitution authorize the federal government to exercise any control over a State by force, veto, judicial procedure, or otherwise.

Moreover, a common and radical error that many people make is that the federal government is a national government; it is not. It is a confederate government. It is a misconception to view the federal government as a national government that can enforce its will upon the states in the United States' political system. If it were a national government, it would derive its power from a source higher than the States. However, since it derives its power from the States, i.e., “we the people” of each State, it is subordinate to “we the people” of the States, who are the sovereigns. That is, the federal government derives its power from the sovereigns. 

In its sovereign capacity, a State can decide independently for itself whether an act of the federal government is unconstitutional. If a State finds an act of the federal government unconstitutional, it has the right in its sovereign capacity to declare that unconstitutional act null and void. Moreover, the federal government has no right to enforce its notion of its powers against that of a State — the State’s notion prevails.

Nullification is based on the principle that a State has the right to defend its reserved powers from the encroachment of the federal government. Whether the Constitution has granted a particular power to the federal government, each State, as a sovereign, decides for itself. If a State finds that a particular act of the federal government exceeds its delegated authority, that act is null and void. Its citizens have no obligation to obey it. However, a State’s nullification does not affect citizens of other States.

To deny the States the right of nullification to defend their reserved powers results in the federal government deciding the extent of its powers and leads to the federal government assuming powers that the States reserved for themselves. History has proven this usurpation. In 1787, only the most radical Anti-Federalist could have imagined that the federal government would become as bloated and tyrannical as it is today.

Nullification seeks not to resist or diminish the powers of the union, but to preserve them as they are, without decreasing or increasing them. (Increasing the union’s powers can effectively destroy the union — as Lincoln proved — as diminishing them.)

Copyright © 2025 by Thomas Coley Allen.

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Part 2.

The Effects of Tariffs on the South

The Effects of Tariffs on the South

Thomas Allen, editor

In The United States Unmasked: A Search into the Causes of the Rise and Progress of These States, and an Exposure Of Their Present Material and Moral Condition (London, Ontario: J. H. Vivian, 1878), pages 33–35, G. Manigault explains the effects of tariffs on the South.

Has the reader ever considered what is the origin and true nature of that offence which is called smuggling? Stealing, and robbery, and the destruction of your neighbour’s property, and a multitude of other acts, are crimes in their very nature, and were criminal before any human law undertook to punish them. But there is in nature no such offence as smuggling. An important ingredient in your natural liberty is the right to carry the proceeds of your industry, or any part of your portable property, to the best market you can find for it; and, when you have exchanged it for other commodities, you have naturally an equal right to carry your new acquisitions home with you. They are as much yours as that was, which you gave for them. These are the natural and justifiable acts out of which governments have manufactured the offence of smuggling. They create the crime by legislation; they provide for its punishment by further legislation. 

The United States affords a striking example of these abuses. The people of the Northern States, having a majority of the votes in Congress, they had, when united among themselves, the control of the government, and sought to use it to their exclusive profit. In raising a revenue for the government, they, by the ingenious arrangements of their tariff acts, threw the burden of taxation on the South. In expending that revenue they bestowed a benefit on the North. They lowered the value of Southern produce by impairing the foreigner’s means of paying for it; and they raised the price of Northern manufactures by shutting out the competition of foreign goods. They used the whole machinery of government as if it had been designed for impoverishing the South and enriching the North. 

This method of plundering the South met with earnest protest and strenuous opposition from that quarter; and the tariffs for revenue and protection underwent many fluctuations. The fact is, that there is an essential incompatibility between the two objects of revenue and protection. Just so far as a duty protects home manufacturers, it fails to yield any revenue; for it keeps out foreign goods: and just so far as a duty yields a revenue from foreign goods imported, it fails to afford protection to the home manufacturer. There were many people at the North, to whom the raising of a large revenue by the government was of vital interest, for they profited by its expenditures. They were opposed to duties so high as to cut off revenue from the government, while affording protection to the manufacturer, by shutting out the goods of his foreign competitor. The representatives of the Southern States, by combining with this class of plunderers, were more than once enabled to foil the measures of that worse class of plunderers, who advocated protective duties so high as to shut out foreign goods.

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